B-182078, JAN 6, 1975

B-182078, JAN 6, 1975

DISALLOWANCE OF CLAIM PRESENTED BY CIVILIAN EMPLOYEE OF ARMY FOR PAYMENT FOR AND RECREDIT OF SICK AND ANNUAL LEAVE USED FROM 1961 THROUGH 1964 IN CONNECTION WITH JOB-RELATED INJURY IS SUSTAINED SINCE BUREAU OF EMPLOYEES' COMPENSATION (BEC) ONLY AWARDED CLAIMANT COMPENSATION FOR PERIODS OF LEAVE WITHOUT PAY AND APPLICABLE REGULATION 20 C.F.R. 1.4(H), IMPLEMENTING 5 U.S.C. 8128, ONLY PERMITS INJURED EMPLOYEE WHO HAS USED PAID LEAVE TO "BUY BACK" SICK LEAVE IF BEC SUBSEQUENTLY APPROVES HIS CLAIM FOR COMPENSATION FOR PERIOD INVOLVED.

LEE J. GAGE - PAYMENT AND RECREDIT OF SICK AND ANNUAL LEAVE USED IN CONNECTION WITH JOB-RELATED INJURY:

THIS ACTION IS A RECONSIDERATION OF SETTLEMENT CERTIFICATE, MARCH 14, 1973, OF OUR TRANSPORTATION AND CLAIMS DIVISION (TCD) OF THE UNITED STATES GENERAL ACCOUNTING OFFICE DISALLOWING THE CLAIM OF MR. LEE J. GAGE, A FORMER EMPLOYEE OF THE DEPARTMENT OF THE ARMY, FOR THE PAYMENT FOR OR RECREDIT OF ANNUAL AND SICK LEAVE USED FROM 1961 THROUGH 1964 IN CONNECTION WITH A JOB-RELATED INJURY.

THE RECORD REVEALS THAT AFTER MR. GAGE WAS INJURED ON MAY 25, 1961, WHILE EMPLOYED BY THE DEPARTMENT OF THE ARMY AT FORT RILEY, KANSAS, HE WAS ABSENT FROM WORK ON REPEATED OCCASIONS FOR APPROXIMATELY THE NEXT FOUR YEARS DUE TO ALLEGED RECURRENCES AND AGGRAVATIONS OF THE ORIGINAL INJURY. DURING THIS PERIOD MR. GAGE WAS PLACED ON SICK OR ANNUAL LEAVE FOR ALL ABSENCES RESULTING FROM HIS INJURIES UNTIL BOTH CATEGORIES OF LEAVE WERE EXHAUSTED ON OCTOBER 27, 1964, AFTER WHICH HE WAS PLACED ON LEAVE WITHOUT PAY FOR SUBSEQUENT ABSENCES. MR. GAGE WAS GRANTED EMPLOYEES' COMPENSATION BY THE BUREAU OF EMPLOYEES' COMPENSATION (BEC), PRESENTLY DESIGNATED AS THE OFFICE OF WORKERS' COMPENSATION PROGRAMS, FROM OCTOBER 28, 1964, THROUGH DECEMBER 31, 1964, BASED ON A PERIOD OF HOSPITALIZATION LASTING APPROXIMATELY 2 MONTHS. AFTER MR. GAGE ACCEPTED A REDUCTION-IN-FORCE ON APRIL 29, 1965, HIS SUBSEQUENT APPLICATION FOR DISABILITY RETIREMENT WAS APPROVED, RETROACTIVE TO THAT DATE.

DESPITE REPEATED ATTEMPTS BY MR. GAGE TO OBTAIN ADDITIONAL EMPLOYEE COMPENSATION BENEFITS FROM THE BEC HE WAS UNABLE TO DO SO UNTIL NOVEMBER 20, 1968, WHEN THE BEC REVERSED ITS PREVIOUS POSITION ON THE MATTER AND DETERMINED THAT MR. GAGE HAD BEEN PARTIALLY DISABLED DUE TO THE INJURY SUSTAINED ON MAY 25, 1961. ACCORDINGLY, THE BEC AWARDED MR. GAGE EMPLOYEES' COMPENSATION FROM JANUARY 1, 1965, THROUGH JANUARY 13, 1965, AND FROM APRIL 8, 1965, THROUGH APRIL 29, 1965, SINCE THESE TWO PERIODS REPRESENTED THE ONLY ABSENCES FROM WORK PRIOR TO HIS RETIREMENT ON APRIL 29, 1965, FOR WHICH MR. GAGE HAD NOT RECEIVED SICK OR ANNUAL LEAVE PAY OR EMPLOYEES' COMPENSATION.

AFTER MR. GAGE WAS REEMPLOYED BY THE DEPARTMENT OF THE ARMY EFFECTIVE SEPTEMBER 24, 1971, HE CLAIMED THAT SINCE HE WAS FORCED TO EXHAUST HIS SICK AND ANNUAL LEAVE FROM 1961 THROUGH 1964 DURING WHICH PERIOD HE SHOULD HAVE BEEN ALLOWED TO CHOOSE BETWEEN USING LEAVE OR EMPLOYEES' COMPENSATION, HE SHOULD BE RECREDITED FOR ALL SICK LEAVE USED DURING THIS PERIOD AND REIMBURSED FOR THE ANNUAL LEAVE THAT WOULD OTHERWISE HAVE ACCRUED THROUGH 1965. BY SETTLEMENT DATED MARCH 14, 1973, MR. GAGE'S CLAIM WAS DISALLOWED BY OUR TCD ON THE BASIS THAT SINCE HE WAS NOT GRANTED EMPLOYEES' COMPENSATION FOR ANY PERIOD IN WHICH HE HAD USED SICK OR ANNUAL LEAVE AND SINCE THE DEPARTMENT OF THE ARMY PROPERLY EXERCISED ITS ADMINISTRATIVE DISCRETION IN PLACING HIM ON LEAVE, HE COULD NOT ELECT TO SUBSTITUTE DISABILITY COMPENSATION FOR THE LEAVE HE HAD EXHAUSTED. MR. GAGE OBJECTED TO TCD'S DECISION BY LETTER DATED JULY 10, 1974, IN WHICH HE STATED THAT HE WAS NEVER GIVEN THE OPTION TO ELECT EMPLOYEES'"OMPENSATION IN LIEU OF SICK AND ANNUAL LEAVE BECAUSE THE BEC DID NOT APPROVE HIS CLAIM UNTIL 1968 AND THAT THEREFORE HE WAS ENTITLED TO THE APPLICATION OF THE "BUY BACK" PROVISION ON THE FEDERAL EMPLOYEES' COMPENSATION ACT WHICH WOULD PERMIT HIM TO CONVERT THE SICK AND ANNUAL LEAVE USED AS A RESULT OF HIS INJURY TO EMPLOYEES' COMPENSATION.

THE PROVISION IN QUESTION CONCERNING AN EMPLOYEE'S RIGHT TO CHOOSE BETWEEN THE USE OF SICK OR ANNUAL LEAVE ON THE ONE HAND OR EMPLOYEES' COMPENSATION ON THE OTHER IS SET FORTH AT 5 C.F.R. 1.4(H) AND PROVIDES AS FOLLOWS:

"AN EMPLOYEE MAY DECIDE TO TAKE SICK AND/OR ANNUAL LEAVE IN ORDER TO AVOID POSSIBLE INTERRUPTION OF INCOME. IF HE DOES AND HIS CLAIM FOR COMPENSATION ON FORM CA-4 IS SUBSEQUENTLY APPROVED, HE MAY ARRANGE WITH HIS EMPLOYING ESTABLISHMENT TO 'BUY BACK' THE LEAVE USED AND HAVE IT REINSTATED TO HIS ACCOUNT. THE COMPENSATION TO WHICH HE IS ENTITLED WOULD PAY A PART OF THE 'BUY BACK' COST AND THE EMPLOYEE WOULD HAVE TO PAY THE BALANCE. THE AMOUNT THE EMPLOYEE WILL BE REQUIRED TO PAY WILL DEPEND ON SEVERAL FACTORS SUCH AS LENGTH OF THE PERIOD OF DISABILITY AND THE AMOUNT OF FEDERAL INCOME TAX WHICH IS WITHHELD FROM HIS LEAVE PAY. THE ESTABLISHMENT CAN HELP THE EMPLOYEE DETERMINE HOW MUCH THE 'BUY BACK' COST WILL BE IN HIS CASE. IF AN EMPLOYEE USES LEAVE AND DECIDES TO BUY IT BACK, HE MAY FILE A CLAIM FOR COMPENSATION ON FORM CA 4 WHILE STILL IN LEAVE STATUS. IN THE INTERIM, THE BUREAU WILL CONSIDER AND RESOLVE ANY POINTS AT ISSUE. NO COMPENSATION PAYMENTS MAY BE PAID, HOWEVER, WHILE THE EMPLOYEE IS STILL IN LEAVE STATUS. ARRANGEMENTS TO 'BUY BACK' LEAVE MUST BE MADE WITH THE EMPLOYING ESTABLISHMENT. THE ESTABLISHMENT MAY MAKE ARRANGEMENTS TO HAVE COMPENSATION PAID DIRECTLY TO ITS ACCOUNT FOR THE PART OF THE 'BUY BACK' COST WHICH IS COVERED."

IN ITS SETTLEMENT OF MR. GAGE'S CLAIM OUR TCD INTERPRETED THIS REGULATION IN THE FOLLOWING MANNER: "UNDER THE REGULATIONS, ANY LEAVE CHARGE WHICH HAS RESULTED FROM AN EMPLOYEE'S INJURY AND FOR WHICH THE BEC APPROVES COMPENSATION PAYMENTS MAY, AT THE EMPLOYEE'S ELECTION, BE CHANGED IN WHOLE OR IN PART TO NONPAY STATUS." HOWEVER, WHEN THE BEC AWARDED MR. GAGE EMPLOYEES' COMPENSATION BY LETTER DATED NOVEMBER 26, 1969, SUCH AWARD WAS SPECIFICALLY LIMITED AS FOLLOWS:

"IT APPEARS THAT PRIOR TO YOUR TERMINATION BY RIF ON APRIL 29, 1965 AND YOUR RETIREMENT ON CIVIL SERVICE ANNUITY EFFECTIVE THE SAME DATE, THERE WERE TWO PERIODS DURING WHICH YOU WERE NOT WORKING AND FOR WHICH YOU WERE NOT COMPENSATED BY PAYMENT FOR SICK LEAVE, ANNUAL LEAVE OR EMPLOYEES' COMPENSATION. THESE PERIODS WERE JANUARY 1, 1965 THROUGH JANUARY 13, 1965 AND FROM ONE-HALF DAY ON APRIL 8, 1965 THROUGH APRIL 29, 1965. WE ARE GIVING YOU THE BENEFIT OF ANY DOUBT AND ARE PAYING COMPENSATION ON THE BASIS OF TEMPORARY TOTAL DISABILITY FOR BOTH OF THESE PERIODS."

IT IS TRUE THAT THE BEC COULD NOT ACTUALLY HAVE AWARDED MR. GAGE EMPLOYEES' COMPENSATION FOR A PERIOD OF ABSENCE DURING WHICH HE HAD BEEN RECEIVING SICK OR ANNUAL LEAVE PAY SINCE SUCH DUAL COMPENSATION IS SPECIFICALLY PROHIBITED BY 5 U.S.C. SEC. 8118. HOWEVER, BASED ON THE LANGUAGE OF ITS NOVEMBER 26 LETTER, QUOTED ABOVE, WE HAVE NO REASON TO ASSUME THAT THE BEC WOULD HAVE FOUND ALL OF MR. GAGE'S ABSENCES FROM WORK BETWEEN MAY 25, 1961, AND APRIL 29, 1965, TO BE COMPENSABLE AND ELIGIBLE FOR AN AWARD OF EMPLOYEES' COMPENSATION IF HE HAD NOT BEEN PLACED ON SICK OR ANNUAL LEAVE DURING MUCH OF THIS PERIOD. CERTAINLY, THE BEC COULD HAVE EXPLICITLY PROVIDED, AS WE ARE ADVISED IT SOMETIMES DOES, THAT MR. GAGE WAS ENTITLED TO RECEIVE EMPLOYEES' COMPENSATION FOR ALL PERIODS OF INJURY- RELATED ABSENCE FROM WORK PROVIDED THAT HE REFUND THE SALARY HE RECEIVED FOR SICK AND ANNUAL LEAVE AND ARRANGED THE SUBSTITUTION THEREFOR OF LEAVE WITHOUT PAY. IN ANY CASE, THE APPLICABLE REGULATION, 20 C.F.R.1.4(H) PROVIDES THAT AFTER AN EMPLOYEE HAS USED PAID LEAVE, LATER DECIDED TO BUY IT BACK, AND THEN FILED A CLAIM FOR EMPLOYEES' COMPENSATION, THE BEC HAS THE JURISDICTION AND AUTHORITY TO CONSIDER AND RESOLVE ANY POINTS AT ISSUE. OUR OFFICE HAS NO AUTHORITY TO REVIEW ANY DETERMINATIONS BY THE BEC OR THE SECRETARY OF LABOR WITH RESPECT TO THE FEDERAL EMPLOYEES' COMPENSATION ACT, SINCE 5 U.S.C. SEC. 8128 VESTS THE AUTHORITY FOR FINAL DETERMINATIONS UNDER THE ACT WITH THE SECRETARY OF LABOR OR HIS DESIGNEE.

ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, PARTICULARLY THE LIMITED NATURE OF THE BEC'S AWARD OF COMPENSATION TO MR. GAGE, WE CONCUR WITH TCD'S DECISION AND MUST SUSTAIN THE DISALLOWANCE OF THE CLAIM. HOWEVER, SHOULD THE BEC, PRESENTLY DESIGNATED THE OFFICE OF WORKERS' COMPENSATION PROGRAMS, AGREE THAT ANY OR ALL OF THE ABSENCES IN QUESTION WERE DUE TO MR. GAGE'S INJURIES FOR WHICH HE IS ENTITLED TO RECEIVE EMPLOYEES' COMPENSATION PROVIDED HE REFUND THE SALARY RECEIVED FOR LEAVE DURING THESE PERIODS AND SUBSTITUTE LEAVE WITHOUT PAY THEREFOR, OUR OFFICE WOULD NOT OBJECT TO ANY ARRANGEMENTS TO THIS EFFECT THAT MR. GAGE MIGHT MAKE WITH THE DEPARTMENT OF THE ARMY. WE NOTE, HOWEVER, THAT NO ANNUAL OR SICK LEAVE ACCRUES FOR A PERIOD IN WHICH AN EMPLOYEE IS AWARDED EMPLOYEES' COMPENSATION AND, THEREFORE, SHOULD MR. GAGE BE PLACED IN A LEAVE WITHOUT PAY STATUS AND RECEIVE EMPLOYEES' COMPENSATION FOR ANY ABSENCES PREVIOUSLY CHARGED TO ANNUAL OR SICK LEAVE, SUCH ACTION WOULD REQUIRE A DOWNWARD ADJUSTMENT AND RECONSTRUCTION OF HIS LEAVE RECORDS BY THE DEPARTMENT OF THE ARMY FOR THE PERIODS INVOLVED. SEE 29 COMP. GEN. 73 (1949) AND 296 (1950). THE DEPARTMENT OF THE ARMY WOULD ALSO BE REQUIRED TO RESOLVE ANY RELATED PROBLEMS THAT MIGHT ARISE IN THE RECONSTRUCTION OF MR. GAGE'S LEAVE RECORD, SUCH AS THE POSSIBLE FORFEITURE DURING ANY OF THE YEARS INVOLVED OF ACCRUED ANNUAL LEAVE IN EXCESS OF THAT PERMITTED BY OPERATION OF 5 U.S.C. SEC. 6304.